other damages the employer may reasonably sustain by such violation of contract." 5 In England also a recent statute had provided a summary remedy for breach of contract or refusal to work by laborers in certain specified employments, by which servants, apprentices, and factory employees can be brought before a magistrate, who may either abate the wages due, or direct the fulfilment of the contract of service, and require recognizance therefor and commit the employee to jail, for a term not exceeding three months, in case he fail to comply therewith. The effect of this provision is to make such breach of the employment contract a penal offence in England, and for that reason the leading case of Reg. v. Bunn was decided. With the exception of the few statutes above cited, there is no such law in this country. § 7. Breach of the 'Employment Contract not Criminal. As the breach of the employment contract only renders the employee liable in damages, and does not subject him to specific performance in a court of equity, so it can never be a criminal offence in the absence of such special statutes as those mentioned in the last section; and not being a criminal offence on the part of an individual, it is not a criminal offence 5 Tenn., 3438. 6 12 Cox C. C., 316. on the part of any number; that is, the mere leaving employment of a large number of workmen, simultaneously or successively, in itself can never subject them to criminal punishment. When they combine by preconcerted arrangement to leave at the same time, certainly when such combination is for the purpose of injuring the employer or any other person, such combination may become punishable as a conspiracy; but in such case it is not the leaving service that is punished, but the combination or conspiracy to injure the employer by so leaving. This matter will be fully discussed in Chapter VIII., §§ 51, 55. If, however, the employees are all under contract to work for a certain period of time, then the combination merely to break such contract without intent to do any other injury may also become an unlawful conspiracy. In most cases, however, of industrial occupations, the employment of the operative is an indefinite one as to time. He may leave at any time without committing a technical breach of contract; and hence may combine with other workmen to leave work at any time without thereby committing an unlawful conspiracy. § 8. Discharge or Termination of the Labor Contract by the Employer.-Where there is no 1 Reg. v. Bunn, 12 Cox C. C., 316. determinate period of service, the employment contract may, of course, be ended by the employer also at any time and without giving any claim to the employee for damages. Whether the mere fact that wages are paid regularly at certain terms, such as weekly or monthly, requires a notice equal to such period of payment, is not so clear. In domestic service, by custom or otherwise, the law has usually so settled it; but in ordinary industrial employment, it would seem that the employer may discharge at any date upon payment of wages due up to that time. As a matter of custom a reasonable notice is usually given. But there are in some states statutes requiring notice of discharge from the employment in cases where a notice of leaving service is required by special contract from the employee. Such statutes will be fully discussed under $ 22. Where, however, the express contract of employment is for any definite period, or from term to term, the employer may not discharge the employee, except for his misconduct, without becoming liable in damages for the breach of contract, and such damages may either be computed at the full amount of the wages which would accrue if the employees served out the entire contract, or at the difference between such amount and the wages he might actually earn in other employments. This latter question is for the jury. The nature and amount of fault on the part of the employee that would justify the employer in putting an end to the contract is somewhat indeterminate. Under some cases it would be a question of fact for the jury. Where, however, there is an express agreement that the work must be done to the employer's satisfaction, the employer is the sole judge of the sufficiency of such work, and may discharge for bad work at his own discretion.1 Statutes, however, are beginning to be passed aimed at preventing arbitrary discharge by corporation employers; thus in Massachusetts "railroad, express, and telegraph companies are required to furnish any discharged employee with a written statement of the causes thereof " 2 (see § 61, Blacklisting); or at preventing discharge for membership in labor unions (see $ 52). An employee may have an action for damages against a person causing his discharge, though under an indefinite contract, by refusing to furnish his employers with a side track from a railroad of which the defendant was manager.3 But in these cases the threat or effort to obtain 1 Koehler v. Buhl, 94 Mich., 496. Mass., 1892, 382. 3 Chipley v. Atkinson, 1 So. Rep., 934. defendant's discharge must be successful. A mere threat is not sufficient.4 § 9. Of the Duties of the Employee; Terms of the Contract; Slavery. (Compare § 49.)-As has been said in § 6, while the duties of the employee are to carry out in full the contract of work for which he is employed, the employer has no remedy if he fail in the same other than by discharging the workman and suing him for damages; but this latter remedy is rarely employed. A contract for any definite employment requiring only certain prescribed duties, or a part of the employee's time, may probably be made for any period of years, though this is rarely the case except in case of skilled business men, overseers, or master workmen whose services are paid for by an actual salary, or a percentage of the profits, or by commission on the business they bring. In the case of general service, however, such as domestic or farm labor, which involves the residence of the employee or servant with the master, it is probable that a con 4 Payne v. R. R. Co., 13 Lea, 507. 1 An interesting case where it was employed is Bowes v. Press (1894), 70 L. T. R., 116, where the contract provided for two weeks' mutual notice of termination. Without such notice a miners' union gave notice they would not descend in cages with non-union men, and twenty days thereafter refused to do so. The employers were held entitled to substantial (5 shillings) damages against all who so refused. |